IN THE COURT OF APPEAL, CIVIL DIVISION. PRESS RELEASE.
THE FINANCIAL CONDUCT AUTHORITY (FCA) V AVACADE LIMITED (IN LIQUIDATION) (2) ALEXANDRA ASSOCIATES (U.K.) LIMITED (3) CRAIG STANLEY LUMMIS (4) LEE EDWARD LUMMIS (5) RAYMOND GEORGE FOX.
16 December, Sheffield, UK
Omid Khub of Zakery Khub Solicitors:
Press Release.
On 10 December 2020, we were successful in obtaining the Court of Appeal’s permission to appeal the judgment of the High Court made earlier this year by Mr Adam Johnson in FCA v Avacade.
The Rt. Hon. Lady Justice Asplin gave permission to appeal the key grounds relating to the correct interpretation of the law that governs ‘making of arrangements’ under Article 25(2) of the Financial Service and Markets Act 2000 (Regulated Activities) Order 2001.
The Court of Appeal recognised that:
“These grounds have a real prospect of success and there is a compelling reason why they should be heard. They concern the proper construction of Art. 25(2) in context and differing approaches in the SimplySure and Watershed cases.”
We were also successful in seeking permission to appeal the High Court’s interpretation of ‘independent advice’ and ‘introducing’ as defined in Article 33. The Court of Appeal held that:
“There is a real prospect of success in relation to the construction of Art. 33(c) and a compelling reason why this matter should be heard.”
Furthermore, our clients sympathise with anyone who may have lost money on their investments. Similarly, they have always maintained that they introduced the UK consumer to FCA regulated IFAs and SIPP providers to advise the UK consumer independently and to apply their own discretion to any investment decision.
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As can be seen, we say that it is grossly unfair that our clients, as introducers should be held solely liable whilst FCA regulated entities and SIPP providers, who received introduction of customers from our clients were not made party to the court proceedings against our clients – clearly, their parts, acts and omissions in the process in which the UK consumer may have lost their investments, have gone unchallenged in the High Court proceedings against our clients.
Additionally, we were surprised that the FCA chose not to include regulated SIPP providers and IFAs in the claim against our clients. Clearly, they played a major part in any losses which the UK consumers may have suffered. Correspondingly, our clients say that a fair question arises here: why would the FCA not join them to the proceedings to answer for their parts in the process? They feel that they were the proverbial soft target.
Finally, our clients are pleased that the Court of Appeal agrees with us. That there is a real prospect of success in our clients’ appeal on those grounds. Above all, the correct interpretation of the law is important for all concerned.
Altogether, we hope that this successful permission to appeal, granted by one of Britain’s most senior female Judges, the Rt. Hon. Lady Justice Asplin, will pave the way for justice for those affected.
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About Zakery Khub Solicitors
Overall, Zakery Khub Solicitors specialise in providing advice on complex commercial, corporate, fraud, Financial Services litigation and a range of other civil legal issues. We are currently instructed on a number of highly complex regulatory and other disputes concerning matters of a complex nature. Hence, if we can help you in your dispute, please do not hesitate to contact us at [email protected]